By Lara Kajs
28 September 2016
The recent attack on an aid convoy in Aleppo Syria during a negotiated cease-fire has made war crimes and how they should be addressed the subject of many discussions, from United Nations chief Ban Ki-moon to country leaders to the staff of aid organizations.
Although it seems that there should be little to question, the reality is that justice may not be forthcoming anytime soon.
What is a War Crime?
The road to what constitutes war crimes begins with the Geneva Conventions. Established in 1949 following World War II, the conventions provides mandates for the protection of civilians, sets the parameters for the treatment of prisoners and care for the wounded during times of war.
On these principles, the 1998 Rome Statute was founded. The Rome Statute is the treaty for the International Criminal Court (ICC), the world’s permanent court for prosecuting war crimes located in The Hague.
Article 8 of the Rome Statute, lists the details of what acts are consider war crimes. Willful killing, torture, inhuman treatment including biological experiments, destruction of property, forced conscription to hostile military service , unlawful deportations and confinement, retaliating against persons not participating in hostilities, taking of hostages and “intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations” – are just a few.
War crimes also apply to the use of certain weapons including bullets “which expand and flatten easily in the human body” and the use of asphyxiating and toxic gases. Article 8
specifies that weapons which cause “superfluous injury or unnecessary suffering or which are inherently indiscriminate” would constitute war crimes. This includes the use of sarin gas, chlorine barrel bombs, cluster bombs and incendiary devices.
War Crimes Tribunals
During the mid to late 1800s, international treaties were developed that set the standard for laws of war. These treaties, including The Hague Conventions of 1899 and 1907 addressed the treatment of combatants however they did not make any stipulations for the treatment of civilians.
After World War II, the Nuremberg Trials (1945-46) and the Tokyo War Crimes Trial (1946-48) held accountable German and Japanese leaders for crimes committed during the war including prosecuting the perpetrators for the improper treatment of civilians.
During the Balkan wars (1993), the United Nations established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. The ICTY has been successful in indicting 161 people and sentencing 83 including former Bosnian Serb leader Radovan Karadzic who is serving 40 years imprisonment for war crimes and crimes against humanity, including the Srebrenica genocide.
In 1994, the UN established the International Criminal Tribunal for Rwanda
(ICTR), following the genocide in which at least 800,000 people were killed. In the first genocide trial in 1997, the ICTR defined rape as a means for committing genocide.
Both the ICTY and the ICTR showed the need for a permanent war crimes court which led to the International Criminal Court being established in 2003.
International Criminal Court in The Hague
Although approximately 124 countries are signatories to the Rome Statute, only 118 have ratified it. State signatories include: 34 African States, 28 Latin America and Caribbean States, 25 Western Europe and other States, 19 Asia-Pacific States and 18 Eastern Europe States.
The ICC’s chief prosecutor is Fatou Bensouda. Cases are referred to the ICC by countries who are signatories of the Rome Statute
, their citizens who are victims of crimes, or by the United Nations Security Council. In some cases, the ICC chief prosecutor chooses to conduct investigations into alleged crimes, providing the judges from the member state involved, or a non-member state agrees to the court’s jurisdiction.
Since the court was established there have been 23 cases tried resulting in three guilty verdicts and one acquittal.
In 2016 Jean-Pierre Bemba was sentenced to 18 years on three counts of war crimes and two charges of crimes against humanity. Also in 2016, the first case of cultural destruction was tried in the ICC, rendering a guilty verdict. Ahmad al-Faqi al-Mahdi was sentenced to nine years imprisonment for the destruction of cultural heritage in Timbuktu.
Each of these cases set precedents. In the Bemba verdict it was the first time a decision was rendered that addressed rape as a weapon of war. The Mahdi verdict set a standard for the protection of culture.
But will the International Criminal Court investigate and/or charge the Syrian government for war crimes?
Syria and the ICC
The situation in Syria is a bit complicated because Syria is not a signatory to the Rome Statute and is therefore not a member State to the ICC, but neither is Russia or the U.S. In this case, the United Nations Security Council would have to mandate an investigation into the war crimes, including the use of chemical weapons, committed by the Syrian government against civilians.
In 2014 China and Russia vetoed an attempt for the UN Security Council to refer Syria to the ICC, at that time for using sarin gas against civilians, leaving many human rights groups – as well as a few leaders to shake their head in disbelief.
It stands to reason that the recent bombing of the Syrian Red Crescent
(ICRC) humanitarian aid convoy in Aleppo during a cease-fire should cast a different light on the situation and result in action. Unfortunately in the days following the attack the city has been under heavy bombardment.
Until there is a peaceful resolution in Syria, it is doubtful that anyone will be held accountable for war crimes, especially not the Syrian government..
Featured Image: Air raids targeted UN aid convoy carrying supplies intended for civilians in Aleppo Syria. Photo: Courtesy of the Syrian Civil Defence - The White Helmets